Thursday, May 31, 2012


Mortgages – farm debts – remedies of mortgagee

In Walker v Hargraves Secured Investments [2012] HCA 4(29 February 2012) the High Court concluded that a certificate issued under s11 of the Farm Debt Mediation Act(NSW) did not lift the bar on a mortgagee enforcing a mortgage granted to secure a loan made to give effect to a mediated settlement of disputes under earlier loans. Appeal from NSW Cour of Appeal allowed: French CJ, Crennan with Kiefel JJ.

Stamp duty – sale agreement – agreement cancelled
In AlH Group Property Holdings Pty Ltd v Commissioner of State Revenue [2012] HCA 6 (8 March 2012) the High Court considered the provisions of the Duties Act 1997 (NSW) in their operation on agreement for the sale of land that was subsequently cancelled and then assigned. Appeal allowed.

Statutes – statutory power
In Australian Education Union v Department of Education and Children’s Services [2012] HCA 3 (29 February 2012) the Full Court of the SA Supreme Court concluded the Industrial Relations Court of South Australia had not erred in concluding temporary teachers in South Austrailia could be appointed before 2007 as contract teachers under s9(4) of the Education Act 1972 (SA) or were required to be appointed as temporary officers under s15(2) of the Act. The High Court reviewed the interpretation of statutes and concluded s9(4) did not authorise the appointments but that they were authorised by s15(2): French CJ, Hayne, Kiefel, Bell, JJ; sim Heydon J. Appeal allowed.

Migration – jurisdictional error – relevant matters – welfare of children
In Tuitaalili v Minister for Immigration and Citizenship [2012] FCAFC 24(13 March 2012) a
Full Court
dismissed an appeal where it was claimed the material before the AAT in an application to review a decision under s501 required the AAT to consider expressly the interests of a child where they had not been raised directly. The Court considered that looked at overall the interest had been considered. Appeal dismissed.

Migration – Judicial review – approved form – application on wrong form
In SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 24(13 March 2012) the migration scheme provided two form for application to the Migration Review Tribunal 9MRT): one for persons in detention and another for those not in detention. They identified different nominated addresses to which documents were to be sent. The
Full Court
concluded the MRT and the primary judge had erred by focusing on the first erroneous M2 form and not acting on the subsequent appropriate M1 form.

Statutory Interpretation – native title – extinguishment of native title – long-term regulation of fishing
In C of A v Akiba [2012]  FCAFC 24(14 March 2012) a
Full Court
considered the effect on native title in the Torres Strait of past controls of commercial fishing. The
Full Court
concluded that while native title to take marine resources remained, it did not extend to taking fish or other aquatic life for sale or trade.

Finding that the party had indirect control of discretionary trust assets was in error

In Harris [2012] FamCAFC 245 (22 December), the husband appealed to the full court (Finn, Thackeray and Strickland JJ) against Bell J’s finding that the 1.5 million assets of a discretionary trust should be treated as the husband’s property because they were indirectly controlled by him. The husband’s mother became appointer on the death of the husband’s father. The trustee was HA Pty Ltd, the directors and shareholders of which were the husband’s mother (two shares), the husband’s son from a previous marriage (one share) and a “longstanding friend” of the husband (one share). The beneficiaries were the husband’s parents, the children of the husband’s father (the husband and his sister, B), and “the lineal issue” of the husband’s father. The businesses were managed by the husband on behalf of the trust. Both the wife and B had worked in the business. Trust distributions had been made to the wife (although she was not a beneficiary) and the husband. Allowing the appeal, the full court found that the husband had no direct or indirect control of the trustee. The court said at paras 64-67 and 70-73:

”the husband appears to be no more than … a beneficiary of [the] trust. He is not the appointer of the trust nor does he hold any position in the current trustee company. …Nor could it be said that he …control[s] the …trustee… [or that] the husband’s mother is his puppet. …One of the difficulties in this case is that the husband’s mother was not called to give evidence. …On the evidence… the best that we could do would be to determine that the trust is a very significant financial resource for the husband.”

See also Morton [2012] FamCA 30 at paras 35-38 (3 February 2012).

Children -Failure to make Interim Order for supervision - History of non-contact

In Green v Graham [2011] FamCAFC 248 (22 December 2011), Coleman J allowed the mother’s appeal against Harma FM’s interim order that a two-year old child spend Saturday s with the father without supervision, saying para 31:

“The crux of the challenges … was that his Honour failed to give adequate weight to the need to provide reassurance to the mother for the safety of the child, and/or …failed to give adequate weight to the history of non-contact between the child and her father relative to her young age, till the duration of separation and the absence of any evidence of an existing relationship.

Coleman J found at paras 40-45 that inadequate weight had been given to Harm Fm’s own finding’s that during the separation of 12 or 16 months the child had seen her father once (a supervised visit that “ended unhappily”) and that “keeping the parents as far as practicable away from each other [would be] advantageous”, concluding:” if his Honour had given proper weight to the child’s circumstances he would have provided supervision at on an interlocutory basis… the Court would have had both evidence of how the supervised contact had proceeded, the mother would have had the opportunity to see whether, despite the past, the father was capable of doing what he clearly expressed a desire to do, and for his part the father would have had an opportunity to demonstrate the capacity which he asserted.”

The proceedings were remitted for rehearing and an interim order was made varying the order so as to provide the father’s time with the child to be supervised by the Centacare Cambelltown Contact Center.

Property - Subpoena - Accountant claimed $4,000 for compliance reduced to $1,000

In Lavell [2012] FamCA 34 (3 February 2012), the husband’s accountant (Mr Y) sought under FLR 15.23(3) reimbursement of $4,000 for “substantial loss and expense” incurred (at an hourly rate of $158) by his firm’s compliance with a subpoena to produce documents. Murphy J examined the principles relevant to conduct money at paras 236-247 saying at paras 250-261:

”Plainly the expenses claimed by Mr Y are ‘substantial”; they are significantly greater than the $45.00 conduct money provided by the wife and are, to use the words employed by Cronin J in Moriarty [(200() FamCA 3691 at [59], ‘large, causing loss’ and ‘unusual in the sense of requiring normal activity to be stopped’.”

Murphy J said that the question was whether the expenses were “reasonable” - not for an accountant to charge but “for an issuing party to pay” - and that “[in] essence, what is reasonable is partial compensation for loss associated with being drawn into a process essential to the administration of justice”. Murphy J added that “it was open to Mr Y to object to the production on the basis that the subpoena was oppressive or sought irrelevant documents (see r15.31)”. His Honour found charges for “discussing” and “reviewing” documents unreasonable, that, “the subpoena was … clear in its description of the documents sought” so that ”the task of searching the firm’s records … was [not] especially complex”. Murphy J held that “$1000 represents adequate recompense for the loss or ‘expense’ incurred by Mr Y’s firm as a result of its compliance with the wife’s subpoena.  
Judicial Review
Approved form
Application on wrong form

In SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 (13 March 2012), the migration scheme provided two forms of application to the Migration Review Tribunal (MRT):  one for persons in immigration detention and one for persons not in immigration detention. They identified different nominated addresses to which documents were to be sent. The full court conceded that the MRT and the primary judge erred by focusing on the first erroneous M2 form and not acting on the subsequent appropriate M1 form.

Judicial Review
Extension of time to commence application “in relation to a migration decision”
Application in quia timet injunction

In SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 (13 March 2012), a Full court cconcluded the 35 day time limit for applications to the Federal Magistrates Court (FMC) in s477 of the Migration Act 1958 (Cth) did not apply to applications to challenge recommendations of an Independent Merits Reviewer under s46A(2) because the recommendation was not a “migration decision”. The Court concluded that notwithstanding s467A(3)(a), it did have jurisdiction to hear an appeal from the FMC that determined the 35 day time limit applied and dismissed the proceeding. The Court observed the FMC had dismissed the proceeding in a summary way. The Court concluded such a decision to dismiss the proceeding was not the decision to refuse to extend time. Questions answered accordingly.

Application granted after statute repealed

In Elders Rural Services Australia v Registrar of Plant Breeder’s Rights [2012] FCAFC 14 29 February 2012) a
Full Court
considered the operation of transitional provisions on an application lodged under the
 Plant Variety Rights Act 1987 (Cth) but granted after the repeal of that Act by the Plant Variety Rights Act 1994 (Cth). The Court concluded the appellant had been granted rights under the new Act and the contrary conclusion of the primary judge was in error. Appeal allowed.

Financial Agreement - Agreement set aside for not being a contract

In Pascot [2011] FamCA 945 (21 December 2011), the wife inter alia sought a declaration that a pre-nuptial agreement (the commencement of which had been backdated to the day before settlement of a property purchase in the husband’s name) was not a contract. The agreement was entered into when the wife was pregnant with their second child. A third child was born four years later. The agreement provided that the husband would provide a home in return for the wife being responsible for the children.

Le Poer Trench J examined the evidence at paras 166-190, saying that the “primary question …is whether the parties are ad idem as to the agreement they are entering”. A contract required a “clear” offer (para 169) and “an unqualified assent to (its) terms” (para 174). It was found that the husband’s offer to buy the house if the wife entered into a financial agreement was subject to negotiation (in that he would not have withdrawn from the contract without penalty). It “was not within [his] power to offer the purchase of the house” (para 170), yet the wife remained reliant on the husband’s representations “that he was still cap ale of backing out of the purchase” (para 179). The wife’s “interest in signing the agreement was to ensure “a roof over the children’s heads”. The husband’s representations to that effect continued after completion of the purchase, making his representations impossible.
Le Poer Trench J concluded at para 185: given that the offer was no longer capable of being offered, and was therefore not offered, it is not possible for there to be acceptance by the wife. The parties were not ad idem over the contract being entered and consequently could not be said to have reached agreement.”

Constitutional Law
Implied Right to communicate - prisoners

In Wotton v Queensland [2012] HCA 2 [29 February 2012] W was an aboriginal person who had been a councillor of the Palm Island Aboriginal Shire Council. In 2008 he was sentenced to imprisonment for involvement in a 2004 riot at the island. In July 2010 the Parole Board granted W parole. By s132(1)(a) of the Corrective Services Act 2006 (Qld) it is an offence to interview a person on parole without the permission of the chief executive of the parole authority. By s200(2) the Act authorised parole conditions to ensure good conduct by the prisoner. Relying on ss132(1)(a) and 200(2) the Parole Board imposed conditions on the parole that prevented W attending meetings on the island without permission or interacting with the media. W commenced proceedings in the original jurisdiction of the High Court claiming s132(1)(a) was unconstitutional for impermissibly burdening the freedom of communication on political matters, contrary to the freedom recognised in cases such as Lange v ABC [1997] HCA 25; Aid/watch Incorporated v FCT [2010] HCA 42. The High Court concluded that while the provisions authorised a burden on W’s right to communicate that may be revealed as unconstitutional in state judicial review proceedings, it was not unconstitutional on its face: French CJ, Hayne, Crennan, Bell JJ; Heydon J; Kiefel J. Questions answered to the effect that the provisions were not invalid.

Whether negligence a “necessary condition” for the occurrence – Civil Liability Act 2002 (NSW)
In Strong v Woolworths Ltd [2012] HCA 5 (7 March 2012) it was accepted that Woolworths owed S a duty of care and did not have any system for cleaning the sidewalk on which S slipped on a potato chip, causing her spinal injuries and the primary judge to award $580,299 in damages. The NSW Court of Appeal concluded S had not proved that Woolworths’ negligence was a cause of the injury. The appeal by S to the High Court was allowed by majority: French CJ, Gummow, Crennan, Bell JJ; contra Heydon J. The majority concluded the Court of Appeal had not confined the causation provisions in s5D of the Civil Liability Act 2002 (NSW) but had erred in inferring that it was not open to infer the chip had been on the ground long enough to be removed by a competent cleaning system. Appeal allowed.

Loss on investing in illegal enterprise
Assignment of rights in the investment
Whether assignee can claim money had and received
In Equuscorp Pty Ltd v Haxton [2012] HCA 7 (8 March 2012) the Court reviewed the policy considerations raised where a party (R) claimed it had the right to seek restitution of funds it advanced under an illegal tax driven investment and where, after R assigned all its rights in the investment to an arm’s length financier (E), restitution was sought from the recipient of the funds by E. The High Court generally concluded that R did not have a right to claim for money had and received and that the loss lay where it fell. The Court concluded a right to claim money had and received could generally be assigned, but that the assignment in question had not done so: French CJ, Crennan J, Kiefel J; Gummow with Bell JJ; contra Heydon J. Appeal from Victorian Court of Appeal dismissed.

Appeal to Federal Court of Australia
Need to identify the “question of law”
In Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 (13 March 2012) a Full Court observed that an order dismissing an appeal from the Administrative Appeals Tribunal (AAT) as incompetent was interlocutory and leave to appeal was required and that as the appellant was 14 a litigation representative was required. The Court concluded the finding the AAT had made that a person was not a “parent” of the appellant for the Citizenship Act 1948 (Cth) was a finding of fact.

From the Thomas Hurley Case Notes

No comments:

Post a Comment